• Article 50 litigation: A useful delay?


    Above, Court No. 1 at the Supreme Court at Parliament Square, Little George Street, London SW1.

    The news that several Remainiacs have instructed Mishcon de Reya to initiate proceedings against HMG vis-à-vis the use of the Royal Prerogative in respect of Article 50 activation is a curate’s egg – good in parts as it introduces a delay that cannot be criticised by EU diplomats.

    Mishcon de Reya’s website states: “Acting on behalf of an anonymous group of clients, solicitors at Mishcon de Reya have been in contact with government lawyers to seek assurances over the process, and plan to pursue it through the courts if they are not satisfied. The law firm has retained the services of senior constitutional barristers, including Lord Pannick QC and Rhodri Thompson QC. Herewith: CLICK HERE
    David Pannick QC’s article was in The Times (http://www.thetimes.co.uk/article/why-giving-notice-of-withdrawal-from-the-eu-requires-act-of-parliament-dz7s85dmw) and Tom Hickman co-authored this (https://ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/) at the UK Constitutional Law Association site.
    British Gazette comment: Government lawyers are or the opinion that the new Prime Minister (whoever she is) will be able to use the Royal Prerogative. The British Gazette is of the opinion that Mishcon de Reya’s anonymous clients have a case. As in most cases of litigation, one cannot be sure of the outcome. One can only be sure of two things: that the case will take time and that the case will cost money (a lot)! This organ is of the opinion that this case will go all the way up to the Supreme Court itself and the final outcome may not arrive until the middle of 2017. If the Supreme Court rules in favour of the plaintiffs, then it will be necessary for the government to initiate legislation allowing the government to invoke Article 50.

    One can expect the Liberal Democrats and the SNP to insist that any outcome is put to a second referendum. This may well be supported by the Labour Party. Given that chaos reigns in the Parliamentary Labour party we cannot be certain of this but it is probably the case that they will support the Lib-Dems and SNP. The attitude of the Tories will be interesting. Europhile Remainiacs such as Ken Clarke will doubtless support this. If Andrea Leadsom is PM we may expect her to oppose this up to and including the addition of a NCM (No Confidence Motion) to the Bill to ensure that there is no second referendum.
    This is because the presence of a second referendum will seriously hinder and hobble HMG’s efforts to get anything or a sensible deal for TWO reasons:
    1. Some British Remanians have concluded that the UK could halt the withdrawal process. Article 50 contains NO such revocation text. Such a revocation would require the consent of the other parties and thus it could be construed as being on the same terms as any request to extend the period of two years – unanimity required.
    2. The balance of negotiating power during the Article 50 withdrawal process is massively in the EU’s favour.
    Were the EU to agree to such a right to revoke and enable the people to decide whether or not to accept the terms or to remain a member, the EU will know that the worse the deal is the more likely the British People are to vote to remain in the EU at the end of the process. As mentioned in a previous article, the EU may well insist on a penalty clause!

    What the British parliamentarians and the anonymous parties financing the legal challenge have to realise however is that these events are not taking part in isolation to other events going on at the time. This presents a huge challenge to all parties involved in the Brexit negotiations once they are underway. This is because the negotiations could wither be overtaken or heavily influenced by events.

    A major concern is the viability of Deutsche Bank. If DB goes down it will likely take down others. Plus a domino effect on the Eurozone PIGS. Herewith: https://www.thestreet.com/story/13628159/1/deutsche-bank-to-initiate-the-next-financial-crisis-stock-could-be-headed-to-zero.html
    In one sense, if DB went down before the conclusions of Brexit negotiations the crisis would put the UK in a stronger position in terms of it’s negotiating position but the UK’s economy would be adversely affected along with every other EU economy.

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